Believe It, Baby. Subjective Belief of Discrimination Ain't Enough

An employee who sues his employer for discrimination almost always believes that his protected characterstic was the real reason behind a negative outcome, such as termination, discipline, etc.. A new decision from the U.S. District Court in Delaware reminds us that an employee's subjective belief regarding discriminatory motive is not sufficient to establish liability against an employer. This decision likely won't stop employees from filing lawsuits but it should provide some reassurance to employers who make carefully considered and well-documented employment decisions.

Facing Facts
The case of Luta v. Delaware Department of Health and Social Services was brought by a black, Kenyan employee of DHSS, who had been denied several promotions. Ms. Luta had been employed with the agency for 5 years when she applied for three internal promotions. She was considered qualified for each position and was placed on a list of eligible candidates.

Two of the positions remained unfilled because the manager was not satisifed with any of the eligible candidates. Instead, two women continued to perform the duties of those positions in a temporary capacity. The third position was awarded to a white male with signficant experience.

Mr. Kennedy had 20 years' experience in the Air Force's Medical Service Corps, but had limited experience with HIV/AIDS.

In issuing its decision, the Court focused primarily on the third position, HIV/AIDS Coordinator. In support of her claim for unlawful failure to promote, Ms. Luta relied argued that she had more experience treating and researching HIV/AIDS diseases than the individual who had been awarded the position. Ms. Luta claimed that she had been told by an HR manager that HIV/AIDS experience was "essential" to the position. By contrast, DHSS argued that management experience was the key skill desired in candidates and, in that regard, the individual selected had far more experience than Ms. Luta.

The Court concluded that Ms. Luta had failed to meet her burden in presenting evidence of discrimination. The Court noted that the human resources manager with whom Luta spoke was not authorized or qualified to elaborate upon the skills required to perform medical positions. The statements of medical professionals responsible for making the hiring decision were given more weight, and supported the contention that management experience was more important that knowledge of HIV/AIDS. The Court also noted that, contrary to Ms. Luta's assertions, the successful candidate did have experience with HIV/AIDS diseases, albeit more limited than her experience. In addition, the comparator was the more desirable candidate because of his extensive management experience.

Setting aside their relative qualifications, however, the Court emphasized that Ms. Luta needed to present some evidence of discrimination. "A reasonable factfinder could not conclude, based solely on the fact that a white man with more managerial experience was hired over a black Kenyan woman with arguably more HIV/AIDS experience . . ., that racial and national origin discrimination had occurred." Based on this conclusion, the Court dismissed Ms. Luta's claims.

This decision represents a beacon of hope for Delaware employers in that it goes to show that a lawsuit will not succeed without some evidence of discrimination other than "I believe" coming from the plaintiff-employee.

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